72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2499
A-Engrossed
House Bill 2939
Ordered by the House April 22
Including House Amendments dated April 22
Sponsored by Representative KRUSE
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Modifies laws relating to medical use of marijuana.
{ + Declares emergency, effective on passage. + }
A BILL FOR AN ACT
Relating to medical use of marijuana; amending ORS 475.302,
475.306, 475.309, 475.312, 475.316 and 475.319; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 475.302 is amended to read:
475.302. As used in ORS 475.300 to 475.346:
(1) 'Attending physician' means a physician licensed under ORS
chapter 677 who has primary responsibility for the care and
treatment of a person diagnosed with a debilitating medical
condition.
(2) 'Debilitating medical condition' means:
(a) Cancer, glaucoma, positive status for human
immunodeficiency virus or acquired immune deficiency syndrome, or
treatment for these conditions;
(b) A medical condition or treatment for a medical condition
that produces, for a specific patient, one or more of the
following:
{ - (i) - } { + (A) + } Cachexia;
{ - (ii) - } { + (B) + } Severe pain;
{ - (iii) - } { + (C) + } Severe nausea;
{ - (iv) - } { + (D) + } Seizures, including but not
limited to seizures caused by epilepsy; or
{ - (v) - } { + (E) + } Persistent muscle spasms, including
but not limited to spasms caused by multiple sclerosis; or
(c) Any other medical condition or treatment for a medical
condition adopted by the department by rule or approved by the
department pursuant { - to a petition submitted pursuant - }
to ORS 475.334.
(3) 'Delivery' has the meaning given that term in ORS 475.005.
(4) 'Department' means the Department of Human Services.
(5) { + (a) + } 'Designated primary caregiver' means an
individual eighteen years of age or older { + :
(A) + } Who has significant responsibility for managing the
well-being of a person who has been diagnosed with a debilitating
medical condition { + ; + } and
{ + (B) + } Who is designated as { - such on that - } { +
a primary caregiver on a + } person's application for a registry
identification card or in other written notification to the
department.
{ + (b) + } 'Designated primary caregiver' does not include
the person's attending physician.
{ + (6) 'Grow site' means the street address at which medical
marijuana will be produced. + }
{ - (6) - } { + (7) + } 'Marijuana' has the meaning given
that term in ORS 475.005.
{ - (7) - } { + (8) + } 'Medical use of marijuana' means
the production, possession, delivery, or administration of
marijuana, or paraphernalia used to administer marijuana, as
necessary for the exclusive benefit of a person to mitigate the
symptoms or effects of his or her debilitating medical condition.
{ - (8) - } { + (9) + } 'Production' has the same meaning
given that term in ORS 475.005.
{ - (9) - } { + (10) + } 'Registry identification card'
means a document issued by the department that identifies a
person authorized to engage in the medical use of marijuana and
the person's designated primary caregiver, if any.
{ - (10) - } { + (11) + } 'Usable marijuana' means the
dried leaves and flowers of the plant Cannabis family Moraceae,
and any mixture or preparation thereof, that are appropriate for
medical use as allowed in ORS 475.300 to 475.346. 'Usable
marijuana' does not include the seeds, stalks and roots of the
plant.
{ - (11) - } { + (12) + } 'Written documentation' means a
statement signed { + and dated + } by the attending physician of
a person diagnosed with a debilitating medical condition or
copies of the person's relevant medical records { + signed and
dated by the attending physician + }.
SECTION 2. ORS 475.309 is amended to read:
475.309. (1) Except as provided in ORS 475.316 and 475.342, a
person engaged in or assisting in the medical use of marijuana is
excepted from the criminal laws of the state for possession,
delivery or production of marijuana, aiding and abetting another
in the possession, delivery or production of marijuana or any
other criminal offense in which possession, delivery or
production of marijuana is an element if the following conditions
have been satisfied:
(a) The person holds a registry identification card issued
pursuant to this section, has applied for a registry
identification card pursuant to subsection { - (9) - } { +
(12) + } of this section, or is the designated primary caregiver
of a cardholder or applicant; and
(b) The person who has a debilitating medical condition and
{ - his or her - } { + the person's + } primary caregiver are
collectively in possession of, delivering or producing marijuana
for medical use in the amounts allowed in ORS 475.306.
(2) The Department of Human Services shall establish and
maintain a program for the issuance of registry identification
cards to { - person - } { + persons + } who meet the
requirements of this section. Except as provided in subsection
(3) of this section, the department shall issue a registry
identification card to any person who pays a fee in the amount
established by the department and provides the following:
(a) Valid, written documentation { - from the person's
attending physician - } stating that the person has been
diagnosed with a debilitating medical condition and that the
medical use of marijuana may mitigate the symptoms or effects of
the person's debilitating medical condition;
(b) The name, address and date of birth of the person;
(c) The name, address and telephone number of the person's
attending physician; { - and - }
(d) The name and address of the person's designated primary
caregiver, if the person has designated a primary caregiver at
the time of application { + ;
(e) The grow site for the person; and
(f) A signed statement that the person has read educational
materials about the medical use of marijuana or has read ORS
475.300 to 475.346 and understands the legal requirements for the
medical use of marijuana. The department shall provide
educational materials in a written form and on its website that
explain the purpose and legal requirements for the medical use of
marijuana + }.
(3) The department shall issue a registry identification card
to a person who is under 18 years of age if the person submits
the materials required under subsection (2) of this section, and
the custodial parent or legal guardian with responsibility for
health care decisions for the person { - under 18 years of
age - } signs a written statement that:
(a) The attending physician { - of the person under 18 years
of age - } has explained to { - that - } { + the + } person
and to the custodial parent or legal guardian with responsibility
for health care decisions for the person { - under 18 years of
age - } the possible risks and benefits of the medical use of
marijuana;
(b) The custodial parent or legal guardian with responsibility
for health care decisions for the person { - under 18 years of
age - } consents to the use of marijuana by the person
{ - under 18 years of age - } for medical purposes;
(c) The custodial parent or legal guardian with responsibility
for health care decisions for the person { - under 18 years of
age - } agrees to serve as the designated primary caregiver for
the person { - under 18 years of age - } ; and
(d) The custodial parent or legal guardian with responsibility
for health care decisions for the person { - under 18 years of
age - } agrees to control the acquisition of marijuana and the
dosage and frequency of use by the person { - under 18 years of
age - } .
(4) A person applying for a registry identification card
pursuant to this section may submit the information required
{ - in - } { + by + } this section to a county health
department for transmittal to the Department of Human Services. A
county health department that receives the information pursuant
to this subsection shall transmit the information to the
Department of Human Services within five days of receipt of the
information. Information received by a county health department
pursuant to this subsection
{ - shall be - } { + is + } confidential and { + is + } not
subject to disclosure, except as required to transmit the
information to the Department of Human Services.
(5) The department shall verify the information contained in an
application submitted pursuant to this section and shall approve
or deny an application within { - thirty - } { + 30 + } days
of receipt of the application. { + As part of the verification
process, the department shall inform the attending physician if
there has been a previous diagnosis by another attending
physician that the applicant is no longer affected by a
debilitating medical condition or that continued use of medical
marijuana is contraindicated. + }
{ - (a) - } { + (6) + } The department may deny an
application only for the following reasons:
{ - (i) - } { + (a) + } The applicant did not provide the
information required { - pursuant to - } { + by + } this
section to establish { - his or her - } { + the
applicant's + } debilitating medical condition and to document
{ - his or her - } { + the applicant's + } consultation with
an attending physician regarding the medical use of marijuana in
connection with such condition, as provided in subsections (2)
and (3) of this section; { - or - }
{ - (ii) - } { + (b) + } The department determines that the
information provided was falsified { + ; or
(c) The person has been convicted of violating ORS 475.992
(1)(a), (b) or (c), or an equivalent offense in another
jurisdiction + }.
{ - (b) - } { + (7) + } Denial of a registry identification
card { - shall be considered - } { + is + } a final
department action, subject to judicial review. Only the person
whose application has been denied { - , - } or,
{ - in the case of a - } { + if the + } person { + is + }
under { - the age of - } 18 years of age { - whose
application has been denied - } , the person's parent or legal
guardian, { - shall have - } { + has + } standing to contest
the department's action.
{ - (c) - } { + (8) A + } { - Any - } person whose
application has been denied { + under subsection (6)(a) or (b)
of this section + }may not reapply for six months from the date
of the denial, unless { - so - } authorized { + to do so + }
by the department or a court of competent jurisdiction. { + The
department may permanently prohibit a person from making further
application if the person's application was denied under
subsection (6)(c) of this section. + }
{ - (6)(a) - } { + (9)(a) + } If the department has
verified the information submitted pursuant to subsections (2)
and (3) of this section and none of the reasons for denial listed
in subsection
{ - (5)(a) - } { + (6) + } of this section is applicable, the
department shall issue a serially numbered registry
identification card within five days of verification of the
information. The registry identification card shall state:
{ - (i) - } { + (A) + } The { - cardholder's - } { +
person's + } name, address and date of birth;
{ - (ii) - } { + (B) + } The date of issuance and
expiration date of the registry identification card;
{ - (iii) - } { + (C) + } The name and address of the
person's designated primary caregiver, if any; { - and - }
{ - (iv) - } { + (D) + } Such other information as the
department may specify by rule { + ; and
(E) The person's grow site + }.
(b) When the person to whom the department has issued a
registry identification card pursuant to this { - section - }
{ + subsection + } has specified a designated primary
caregiver, the department shall issue an identification card to
the designated primary caregiver. The primary caregiver's
{ - registry - } identification card shall contain the
information { - provided in - } { + required by + } paragraph
(a) of this subsection.
{ - (7)(a) - } { + (10)(a) + } A person who possesses a
registry identification card shall:
{ - (i) - } { + (A) + } Notify the department of any change
in the person's name, address, { + telephone number, + }
attending physician { + , + } { - or - } designated primary
caregiver { + or grow site + }; and
{ - (ii) - } { + (B) + } Annually submit to the department:
{ - (A) - } { + (i) + } Updated written documentation
{ + stating that the person continues to be diagnosed with a
debilitating medical condition and that the medical use of
marijuana may continue to mitigate the symptoms or effects + } of
the person's debilitating medical condition { + ;
(ii) The grow site for the person + }; and
{ - (B) - } { + (iii) + } The name of the person's
designated primary caregiver if a primary caregiver has been
designated for the upcoming year.
(b) If a person who possesses a registry identification card
fails to comply with this subsection, the card { - shall be - }
{ + is + } deemed { + to have + } expired. { - If - } { +
When + } a registry identification card expires, the
identification card of any designated primary caregiver of the
cardholder { - shall also expire - } { + expires on the same
date + }.
{ - (8) A person who possesses a registry identification card
pursuant to this section and who has been diagnosed by the
person's attending physician as no longer having a debilitating
medical condition shall return the registry identification card
to the department within seven calendar days of notification of
the diagnosis. Any designated primary caregiver shall return his
or her identification card within the same period of time. - }
{ + (11)(a) No later than 30 days after an attending
physician has diagnosed a person as no longer having a
debilitating medical condition and has informed the person of
that fact, the physician shall notify the department in writing
of the change in diagnosis.
(b) No later than 30 days after an attending physician
determines that continued use of medical marijuana by a person is
contraindicated and has informed the person of that fact, the
physician shall notify the department in writing of the
determination.
(c) Upon receiving notice under paragraph (a) or (b) of this
subsection, the department shall revoke the registry
identification card of the person. No sooner than 45 days and no
later than 60 days after receiving notification under paragraph
(a) or (b) of this subsection, the department shall send the
person notice of the revocation that includes a direction to the
person to return the person's registry identification card and,
if the person has a designated primary caregiver, the primary
caregiver's identification card to the department. The revocation
takes effect on the date that the person receives the notice of
revocation. No later than seven days after receiving notification
of the revocation, the person shall return the person's registry
identification card and, if the person has a designated primary
caregiver, the primary caregiver's identification card to the
department.
(d) Notwithstanding paragraph (c) of this subsection, if a
person provides the department with valid written documentation
from a different attending physician prior to receiving the
notice of revocation, the person's registration card remains
valid. + }
{ - (9) - } { + (12) + } A person who has applied for a
registry identification card pursuant to this section but whose
application has not yet been approved or denied, and who is
contacted by any law enforcement officer in connection with
{ - his or her - } { + the person's + } administration,
possession, delivery or production of marijuana for medical use
may provide to the law enforcement officer a copy of the written
documentation submitted to the department pursuant to
{ - subsections - } { + subsection + } (2) or (3) of this
section and proof of the date of mailing or other transmission of
the documentation to the department. This documentation
{ - shall have - } { + has + } the same legal effect as a
registry identification card until such time as the person
receives notification that the application has been approved or
denied.
{ + (13) Information about a person's grow site that is
provided to the department under this section is confidential and
may not be disclosed except to employees of law enforcement
agencies as necessary to verify that the site is registered with
the department. + }
SECTION 3. ORS 475.316 is amended to read:
475.316. (1) No person authorized to possess, deliver or
produce marijuana for medical use pursuant to ORS 475.300 to
475.346 shall be excepted from the criminal laws of this state or
shall be deemed to have established an affirmative defense to
criminal charges of which possession, delivery or production of
marijuana is an element if the person, in connection with the
facts giving rise to such charges:
(a) Drives under the influence of marijuana as provided in ORS
813.010;
(b) Engages in the medical use of marijuana in a public place
as that term is defined in ORS 161.015, or in public view or in a
correctional facility as defined in ORS 162.135 { - (2) - } or
youth correction facility as defined in ORS 162.135 { - (6) - }
;
(c) Delivers marijuana to any individual who the person knows
is not in possession of a registry identification card;
(d) Delivers marijuana for consideration to any individual,
even if the individual is in possession of a registry
identification card;
{ - (e) Manufactures or produces marijuana at a place other
than one address for property under the control of the patient
and one address for property under the control of the primary
caregiver of the patient that have been provided to the
Department of Human Services; or - }
{ - (f) Manufactures or produces marijuana at more than one
address. - }
{ + (e) Produces marijuana in excess of the amounts
authorized by ORS 475.306; or
(f) Produces marijuana at a location other than a grow site
reported to the Department of Human Services and listed on the
person's registry identification card or primary caregiver's
identification card. + }
(2) In addition to any other penalty allowed by law { + : + }
{ - , - }
{ + (a) The department may preclude + }a person who the
department finds has willfully violated the provisions of ORS
475.300 to 475.346, or rules adopted under ORS 475.300 to
475.346, { - may be precluded - } from obtaining or using a
registry identification card
{ - for the medical use of marijuana - } for a period of up to
six months, at the discretion of the department.
{ + (b) The department may permanently revoke the registry
identification card of a person who has been convicted of
violating ORS 475.992 (1)(a), (b) or (c), or an equivalent
offense in another jurisdiction. + }
SECTION 4. ORS 475.312 is amended to read:
475.312. (1) If a person who possesses a registry
identification card issued pursuant to ORS 475.309 chooses to
have a designated primary caregiver, the person must designate
the primary caregiver by including the primary caregiver's name
and address:
(a) On the person's application for a registry identification
card;
(b) In the annual updated information required under ORS
475.309; or
(c) In a written, signed statement submitted to the Department
of Human Services.
(2) A person described in this section may have only one
designated primary caregiver at any given time.
{ + (3) A person who has been issued a registry
identification card and has a designated primary caregiver may
not serve as a designated primary caregiver. + }
SECTION 5. ORS 475.306 is amended to read:
475.306. (1) A person who possesses a registry identification
card issued pursuant to ORS 475.309 may engage in, and a
designated primary caregiver of such a person may assist in, the
medical use of marijuana only as justified to mitigate the
symptoms or effects of the person's debilitating medical
condition. Except as allowed in subsection (2) of this section, a
registry identification cardholder and that person's designated
primary caregiver may not collectively possess, deliver or
produce more than the following:
(a) If the person is present at a location at which marijuana
is not produced, including any residence associated with that
location, one ounce of usable marijuana; and
(b) If the person is present at a location at which marijuana
is produced, including any residence associated with that
location, three mature marijuana plants, four immature marijuana
plants and one ounce of usable marijuana per each mature plant.
(2) If the individuals described in subsection (1) of this
section possess, deliver or produce marijuana in excess of the
amounts allowed in { - subsection (1) - } { + subsections (1)
and (3) + } of this section, such individuals are not excepted
from the criminal laws of the state but may establish an
affirmative defense to such charges, by a preponderance of the
evidence, that the greater amount is medically necessary to
mitigate the symptoms or effects of the person's debilitating
medical condition.
{ + (3) A person described in subsection (1) of this section
may not grow more than three mature marijuana plants and four
immature marijuana plants at one grow site. + }
{ - (3) - } { + (4) + } The Department of Human Services
shall define by rule when a marijuana plant is mature and when it
is immature for purposes of this section.
SECTION 6. ORS 475.319 is amended to read:
475.319. (1) Except as provided in ORS 475.316 and 475.342, it
is an affirmative defense to a criminal charge of possession or
production of marijuana, or any other criminal offense in which
possession or production of marijuana is an element, that the
person charged with the offense is a person who:
(a) Has been diagnosed with a debilitating medical condition
within 12 months prior to arrest and been advised by his or her
attending physician the medical use of marijuana may mitigate the
symptoms or effects of that debilitating medical condition;
(b) Is engaged in the medical use of marijuana; and
(c) Possesses or produces marijuana only in the amounts allowed
in ORS 475.306 (1) { + and (3) + }, or in excess of those
amounts if the person proves by a preponderance of the evidence
that the greater amount is medically necessary as determined by
the person's attending physician to mitigate the symptoms or
effects of the person's debilitating medical condition.
(2) It is not necessary for a person asserting an affirmative
defense pursuant to this section to have received a registry
identification card in order to assert the affirmative defense
established in this section.
(3) No person engaged in the medical use of marijuana who
claims that marijuana provides medically necessary benefits and
who is charged with a crime pertaining to such use of marijuana
shall be precluded from presenting a defense of choice of evils,
as set forth in ORS 161.200, or from presenting evidence
supporting the necessity of marijuana for treatment of a specific
disease or medical condition, provided that the amount of
marijuana at issue is no greater than permitted under ORS 475.306
and the patient has taken a substantial step to comply with the
provisions of ORS 475.300 to 475.346.
(4) Any defendant proposing to use the affirmative defense
provided for by this section in a criminal action shall, not less
than five days before the trial of the cause, file and serve upon
the district attorney a written notice of the intention to offer
such a defense that specifically states the reasons why the
defendant is entitled to assert and the factual basis for such
affirmative defense. If the defendant fails to file and serve
such notice, the defendant shall not be permitted to assert the
affirmative defense at the trial of the cause unless the court
for good cause orders otherwise.
SECTION 7. { + This 2003 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2003 Act takes effect on its
passage. + }
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